ICE Breakers: Public Defenders are Standing Up for their Undocumented Clients in More Ways than One

The increasing detention of undocumented immigrants inside New York City courthouses is spurring protests from the public defenders who represent them. Immigrants make up a large percentage of public defender clients and their attorneys say Immigration and Customs Enforcement (ICE) is violating their clients’ rights by preventing them from attending court hearings without fear of apprehension.

Undocumented immigrants often arrive to court for low-level offenses, only to find federal agents waiting for them.

Alejandra Lopez of the Immigrant Defense Project told The Indypendent that so far this year her organization has documented 41 courthouse arrests statewide, including 31 in the city. “This is a 70 percent increase from the same time period last year,” Lopez said.

During the first year of the Trump administration ICE made 144 courthouse arrests in New York State, 97 of which were in the city’s courthouses. There were just 11 such recorded incidents in 2016.

In response to ICE’s increased presence in the halls of justice, attorneys with the Legal Aid Society have staged a series of walkouts with more planned for the future.

“Public defenders were just tired of having their clients taken away from them and having their due process denied,” said Alexi Shalom, an organizer for the Association of Legal Aid Attorneys (ALAA).

Legal Aid Society attorneys, as well as lawyers with Bronx Defenders and Brooklyn Defender Services, have walked out of courthouses six times so far this year.

Critics have denounced the temporary strikes, accusing attorneys of abandoning their clients. “There is no justification for walking out on clients during court hours,” Kim Livingston, a spokesperson for the Queens DA’s office, told The Indy. In April, court administrators took the unusual step of assigning 10 Legal Aid clients in Queens to new attorneys.

“If anything, we are representing our clients through these walkouts,” Shalom argues, adding that none of Legal Aid’s clients are left without representation, since the walkouts have occurred during the lunch hour with supervisors assigned to clients in the meantime.

There are other means of protecting immigrants in the courtroom, but they require cooperation between prosecutors and the presiding judge.

“What we usually do when we know there’s a client that’s going to be arrested by ICE is we try to argue for some type of low-level bail,” says Legal Aid attorney Pauloma Martinez. By remaining in the city’s custody, clients avoid federal arrest. It’s a bizarre situation in which attorneys are forced to stop defending their client’s innocence and instead must advocate for them to go to jail as a means of escaping deportation.

This strategy is not ironclad. When she spotted ICE agents waiting in the wings for two of her clients at the Kew Gardens courthouse Martinez sought bail. However, an assistant DA argued against it in one the two cases, leading to a client’s apprehension.

“For what reason is an assistant district attorney not arguing for bail?” Martinez asked. In situations that don’t involve ICE, for a low-level legal citizen drug offender for example, “they almost always argue for bail.”

“[W]e believe there’s only been one occasion where we were asked to set bail, and did not do so because it did not meet the criteria for setting bail, which is to ensure an individual’s return to court,” said Kim Livingston of the Queens DA’s office.

In multiple states, the American Civil Liberties Union and other legal groups are challenging ICE’s court presence, arguing it is a violation of states’ rights and that it impedes access to the courts.

On April 25, Gov. Andrew Cuomo announced he would sign an executive order requiring ICE to obtain a court order before making arrests in the state’s courthouses but immigration advocates remain skeptical the order will stem the tide of detentions. ICE shows no signs of turning away from New York’s courtrooms. As The Indy was going to press immigration agents made two separate arrests at courtrooms in Staten Island and Manhattan.